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Publications of 

The American Academy of Political and Social Science. 

No. 286. 

Issued Fortnightly. September 18, 1900. 


Law and Practice of the United States 
in the Acquisition and Govern¬ 
ment of Dependent 
Territory. 


BY 

Carl Becker, 

Pennsylvania State College. 


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AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE. 


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LAW AND PRACTICE OF THE UNITED 
STATES IN THE ACQUISITION AND 
GOVERNMENT OF DEPENDENT TERRI¬ 
TORY. 






LAW AND PRACTICE OF THE UNITED STATES IN 
THE ACQUISITION AND GOVERNMENT OF 
DEPENDENT TERRITORY. 

In the following paper I wish to consider two questions : 
(i) What is the basis in constitutional law for the acquisi¬ 
tion and government of dependent territory by the United 
States ? (2) Has the federal government, as a matter of 
practice, conformed to the law in these two respects ? 

1. Law: ( a) acquisition. There is no clause in the con¬ 
stitution which directly refers to the acquisition of territory 
by the United States ; the right to acquire territory is neither 
expressly given nor expressly denied. It has generally 
been assumed, nevertheless, that the right exists because it 
is one of the rights inherent in a sovereign state, and the 
framers of the constitution, therefore, had they intended 
to deny the power to the government which they created, 
would have inserted in the constitution a specific statement 
to that effect. No one but Jefferson apparently, ever thought 
it necessary to resort to a constitutional amendment for the 
purpose of legalizing acquisitions of territory, and even he 
gave up the idea after vainly urging its necessity, during 
the summer of 1803. The theory which the leaders of 
Jefferson’s party put forward to justify the acquisition of 
Louisiana was that the constitution, though it did not 
directly give the right to acquire new territory, did so in¬ 
directly, through the treaty making power and the war 
power. Twenty-five years later the supreme court, speak¬ 
ing through Justice Marshall, took exactly the same view, 
in the case of the American Insurance Co. v. Canter. 1 
“The constitution confers absolutely on the government of 
the Union the powers of making war and of making treaties ; 

1 1 Pet. 542. 

By t4°4] 

AUG 14 >07 '’A//.. 

< , ' 6V 

Cl fi Ifni 1 1 no , 


Government of Dependent Territory. 6i 

consequently that government possesses the power of acquir¬ 
ing territory either by conquest or by treaty. ’ ’ This decision 
has never been reversed. A modification of it was attempted 
in the case of Dred Scott, but as that portion of the opinion 
is generally agreed to have been an obiter dictum , it will be 
better to omit the case of Dred Scott from further consider¬ 
ation, spite of the fact that it contains the most exhaustive 
discussion of the whole subject of the acquisition and gov¬ 
ernment of territory to be found in the entire range of judicial 
decisions. 1 On the other hand the decision of Justice Mar¬ 
shall has been repeatedly confirmed by decisions before and 
since the time of Dred Scott. It may be confidently asserted 
therefore, with little fear of contradiction, that the law of the 
acquisition of territory by the United States is this : The 
federal government may acquire territory by treaty or 
by conquest. 

( b ) Government. The question of the right to govern 
dependent territory does not arise, because this right is 
granted to the federal government, in terms, by the con¬ 
stitution. 2 “Congress shall have pow T er to dispose of and 
make all needful rules and regulations respecting the terri¬ 
tory or other property belonging to the United States.” 
The question here is not may Congress govern the territories, 
but how may it govern them. 

This on the face of it would seem, perhaps, an easy ques¬ 
tion to decide. The grant of power to Congress seems to 
be plenary. Shall we not answer, therefore, that Congress 
may govern the territory which has been acquired, in any 
manner it desires, absolutely and without limit ? But the 
question is not so simple. There are in the constitution 
certain specified things which Congress is not permitted to 
do : Congress may not pass an ex post facto law, or a bill of 
attainder, or authorize the trial of a person accused of crime, 
except by a jury. There are many other things which Con- 


1 19 How. 393. 

* Constitution, IV, 3. 


C405] 


62 Annaes of the American Academy. 

gress is in terms forbidden to do. Taken together, these 
prohibitions constitute the realm of liberty, within which the 
sovereign power of the state, speaking through the constitu¬ 
tion, frees the individual from all interference by the 
federal government. Now, the core of the question at issue 
is this: Does this realm of liberty exist for the individual 
within the states and territories, or only within the states ? 
Does the constitution follow Congress into the territories, or 
when Congress steps into the territories, does it divest itself 
of all restraint upon its power to legislate ? Is there any 
part of our political system in which the constitution is not 
the law of the land ? The constitution itself says, and no 
one denies, that it was ordained and established for the 
United States of America. At bottom, therefore, the ques¬ 
tion we have to decide here is, what is the legal (not the 
historical or the logical) meaning of the term United States. 
If it means merely the states united, Congress may legally 
pass bills of attainder and ex post facto laws for the territo¬ 
ries ; if it means the states united and all other territory 
over which the federal government exercises jurisdiction, 
Congress may not legally do these things or any of those 
things which it is specifically forbidden to do by the con¬ 
stitution. 

The term United States is not defined in the constitu¬ 
tion. It is sometimes used in the sense of the states united, 1 
and sometimes in the broader sense, 2 but from the constitu¬ 
tion itself no decisive answer can be obtained to the question, 
what does the term United States mean. The only recourse, 
therefore, is to the supreme court; the interpretation which 
it puts upon the term must be decisive of its legal meaning. 
The leading case is that of Loughborough and Blake, 8 
decided in 1820. “The term United States,” said Justice 
Marshall, ‘ ‘ is the name given to our great republic which 


1 See article in Review of Reviews for January, 1899. H. P. Judson. 

* See Dependencies and Protectorates, Political Science Quarterly , March, 1899. 
8 5 Wheat. 317. 


Government of Dependent Territory. 63 

is composed of states and territories. The District of Colum¬ 
bia or the territory west of the Missouri, is not less within 
the United States than Maryland or Pennsylvania.” Omit¬ 
ting from consideration the case of Dred Scott for reasons 
already mentioned, it will be sufficient to refer to the case 
of Cross v. Harrison, in which this definition of the term 
United States was repeated specifically, 1 and to Clarke v. 
Brazadone, 2 Clinton v. Englebrecht, 8 and ex parte Bollman, 4 
in which this definition of the term United States is clearly 
assumed as the basis of the decision in each case. In view 
of these decisions it is believed that the term United States 
has only one meaning in our constitutional law, and that is 
this: all of the territory under the jurisdiction of the fed¬ 
eral government. 

If the United States includes all dependent territory, and 
if the constitution was made for the United States, it is clear 
that Congress in governing the territories is limited by all of 
the constitutional immunities which are absolute as against 
the federal government. But although this is the logical 
inference from the proposition that the United States includes 
the territories as well as the states, the courts, in deciding 
the direct question of the power of Congress in the territo¬ 
ries, may not always have drawn this inference. The ques¬ 
tion now is, therefore, has the court, in its decision of the 
specific question of the power of Congress in the territories, 
been consistent with its interpretation of the term United 
States. It may be stated at once that, with possible excep¬ 
tions of minor importance, the court has taken the view 
which its interpretation of the term United States would 
seem to make necessary. It has always maintained that 
the constitution extends to the territories ex proprio vigore, 
and that Congress is, therefore, not absolute there, but that 
it has plenary legislative powers modified by the positive and 

1 16 How. 164. 

2 1 Cranch, 212. 

3 13 Wall. 434. 

4 4 Cranch, 75. 


64 Annals of the American Academy. 

absolute limitations of the constitution. But the court has 
been chary of deciding the direct question. It has rarely 
been necessary indeed, because the constitution has invari¬ 
ably been extended to the territories by specific legislation, 
and in correcting territorial legislation on constitutional 
grounds, there has consequently been no necessity of touch¬ 
ing upon the question as to whether it extends there of its 
own force. Obviously the latter question can come before 
the court only when some direct legislative act of Congress 
is in review. Fortunately such has been the case in a few 
instances. 

One of the earliest and clearest statements of the power of 
Congress in the territories was made by Marshall in connec¬ 
tion with his definition of the term United States: 1 “ The 

District of Columbia or the territory west of the Missouri is 
not less within the United States than Maryland or Penn¬ 
sylvania, and it is not less necessary on the principles of our 
constitution, that uniformity in the impositions of imposts, 
duties, and excises should be observed in the one than in 
the other.” In the case of Cross and Harrison, 3 after inter¬ 
preting the term United States to include the territories, it 
was stated that, ‘ ‘ the right claimed to land foreign goods 
within the United States at any point outside of a collection 
district, if allowed, would be a violation of that provision in 
the constitution which enjoins that all duties, imposts and 
excises shall be uniform within the United States.” But 
the fullest and most explicit statement of the power of Con¬ 
gress in the territories, is to be found in the case of Murphy 
v. Ramsey, decided in 1884. 8 The question at issue was 
the law of Congress which made polygamy a crime and 
deprived of the suffrage those citizens of the territories who 
were guilty of it. In considering the power of Congress to 
pass such a law for the territories the court said: “The 

1 Loughborough v. Blake. 5 Wheat. 317. 

* 16 How. 164. 

* 114 U. S. 


[408] 


Government of Dependent Territory. 65 

people of the United States, as sovereign owners of the 
national territories, have supreme power over them and their 
inhabitants. In the exercise of this sovereign dominion 
they are represented by the Government of the United 
States, to whom all the powers of government over that sub¬ 
ject have been delegated, subject only to such restrictions as 
are expressed in the constitution, or are necessarily implied 
in its terms or in the purposes and objects of the power 
itself. . . . But in ordaining government for the ter¬ 

ritories, ... all the discretion which belongs to legis- 
lative power is vested in Congress; and that extends, beyond 
all controversy, to determining by law, from time to time, 
the form of the local government in a particular territory 
and the qualifications of those who shall administer it. It 
rests with Congress to say whether, in a given case, any of 
the people resident in a territory, shall participate in the 
election of its officers or the making of its laws; and it may 
therefore take from them any right of suffrage it may have 
previously conferred. . . . The right of local self-gov¬ 
ernment, as known to our system . . . belongs, under 

the constitution, to the states and the people thereof, by 
whom that constitution was ordained. . . . The per¬ 

sonal and civil rights of the inhabitants of the territories are 
secured to them, as to other citizens, by the principles of 
constitutional liberty which restrain all the agencies of gov¬ 
ernment, state and national; their political rights are fran¬ 
chises which they hold as privileges in the legislative 
discretion of the Congress of the United States.” No clearer 
statement has been made in any case, and a different view 
has never been held, by the supreme court; on the other 
hand, the principle here laid down was foreshadowed in the 
earlier cases of the National Bank v. Yankton County, 1 
and Reynolds v. the United States. 2 

Though clear in the belief that the constitution extends of 

1 101 U. S. 

» 98 u. s. 

[409] 


66 Annans of the American Academy. 

its own force to the territories, the courts have never clearly 
decided the precise moment at which the constitution begins 
to operate in newly acquired territory. In Fleming v. Page 1 
the court took the position that conquered territory does not 
become a part of the United States until Congress establishes 
civil government there, and is not subject to the revenue 
laws of the United States until it has been erected into a 
collection district. It was asserted that this construction of 
the revenue laws had been uniformly given by the adminis¬ 
trative department of the government. This view, however, 
seems in conflict with the idea that the constitution extends 
of its own force to the territories, for such a construction 
would practically mean that the constitution does not extend 
to the territories until Congress extends it there by legisla¬ 
tion with reference to the collection of the revenue. It is 
also in conflict with a later decision in the case of Cross v . 
Harrison, 2 in which California was decided to have been a 
part of the United States from the moment the treaty of 
annexation was signed; and the collector, appointed 
under military government, was supported in collecting the 
duties of the act of 1846 as soon as he had news of the 
treaty, which was some time before civil government was 
established or the territory erected into a collection district. 

In view of these decisions, the constitutional law of the 
United States, for the government of dependent territory, 
may be stated as follows : The term United States, includes 
states and territories. The constitution was made for the 
whole United States and extends of its own force over all 
newly acquired territory, at least as soon as civil govern¬ 
ment is established there ; the constitution gives Congress 
plenary power of legislation in the territories, subject to the 
absolute limitations upon its power expressed in the con¬ 
stitution. 

2. Practice: ( a ) acquisition . The practice of the United 


[410] 


1 4 How. 603. 

8 16 How. 164. 


Government of Dependent Territory. 67 

States in acquiring territory may be briefly stated. Aside 
from the northwest and southwest territory, which was 
virtually a part of the United States when the present consti¬ 
tution was formed, Louisiana, Florida, Oregon, the Gadsden 
purchase, and Alaska, were acquired by treaty ; California 
and the north Mexican states, by conquest in the guise of a 
treaty ; Texas and Hawaii, by joint resolution of Congress, 
after an attempt to secure them by treaty had failed. The 
practice of the United States in acquiring territory has 
therefore conformed to the constitutional law on the subject in 
every case, save possibly that of Texas and Hawaii; for the 
method by which these territories were acquired, it is 
believed, there is no basis, strictly speaking, in the con¬ 
stitutional law of the United States. 

(£) Government. The question now to be discussed is 
this : Has Congress, in practice, governed the territories 
within the limitations which the court decisions lay down as 
necessarily binding? First, however, it will be well to 
keep in mind the distinction, which the court drew so clearly 
in the case of Murphy v. Ramsey, between civil rights and 
political privileges in the territories. That undemocratic 
governments have been established in the territories does 
not mean that the privileges guaranteed in the constitution 
have been denied them. The undemocratic form of first 
grade territories established by the northwest ordinance, 
has been frequently referred to by various writers as proving 
the absolutism of Congress in the territories. This is cer¬ 
tainly a misconception. Even those who contend that the 
constitution extends of its own force to the territories do not 
maintain that this guarantees the establishment of republican 
government there. The privileges which individuals enjoy 
as against the federal government are not political (with one 
exception, since the civil war) ; they are in the nature of 
personal immunities and property rights. It is not contended 
that the rule for interpreting the powers of Congress in the 
territories is the same as that for interpreting its powers in 

[4“] 


68 


Annals of the American Academy. 


the states. In the latter case the rule is that all powers not 
specifically granted to Congress or denied to the states are 
reserved to the states or to the people ; but in the territories 
Congress has been given general legislative power, and the 
rule for interpreting its powers (assuming that the constitu¬ 
tion extends to the territories of its own force) is, that all 
powers not specifically denied to Congress are reserved to 
Congress. The only constitutional rights which the terri¬ 
tories possess absolutely are defined in the absolute limita¬ 
tions upon the power of Congress. The right to establish 
undemocratic governments is not denied to Congress. The 
question, therefore, is not, has Congress denied to the inhabi¬ 
tants of the territories political privileges, but has it denied 
them the personal liberties and the property rights guar¬ 
anteed to every individual against the federal government. 

In treating this question it will be convenient to notice 
(i) the theory of its own power in the territories upon which 
Congress has acted, and (2) whether Congress has actually 
denied to the territories rights which, according to judicial 
interpretation, are secured by the constitution. 

It may be stated confidently that the theory upon which 
Congress has generally, if not invariably, acted is the exact 
opposite of that which the supreme court has always main¬ 
tained. Both have believed that the constitution was made 
for the United States; but the court has defined the United 
States to mean the states and territories, while Congress has 
defined the United States to mean the states alone. The 
former has concluded, therefore, that Congress does not rid 
itself of constitutional limitations when it steps into the 
territories; the latter has concluded that it does. 

That this has been the theory upon which Congress has 
acted is clear from the fact that whenever new territory has 
been acquired, and civil governments established, the con¬ 
stitution and laws of the United States have been extended 
to it by specific legislative action. The revenue laws of the 
United States were extended to the northwest territory in 

[412] 


Government of Dependent Territory. 69 


1794, to the territory acquired from France in 1804, to 
Florida in 1821, to Oregon in 1848, to California in 1849, 
and to Alaska in 1868. Practically every territorial act 
contains the provision that no law shall be passed by the 
local government which is contrary to the constitution, and 
in many instances more or less careful enumerations of per¬ 
sonal and property rights are included in these acts as being 
reserved to the inhabitants, although the same rights are 
enumerated more fully in the constitution itself. Specific 
legislation by Congress extending the constitution to the ter¬ 
ritories, and granting them rights already named in the con¬ 
stitution, clearly shows that Congress believed these rights 
might have been denied, and that the constitution does not 
extend to the territories of its own force. The Louisiana 
debate, and the debate on the admission of Missouri, show 
this to have been the all but unanimous opinion; it was not 
until the growing strength of the North in Congress forced 
the southern Democrats to reconstruct their constitutional 
law that the opposite view, reflected in the Dred Scott deci¬ 
sion, began to prevail; but this influence was only reactionary, 
and, from the point of view of territorial administration, 
never produced anything more effective than the non¬ 
descript theory of popular sovereignty. 

But Congress may have acted upon the theory that the 
personal and property rights guaranteed in the constitution 
might legally be denied to the territories without, as a matter 
of fact, denying them. The question now under considera¬ 
tion is, what has Congress done in the territories which it 
might not have done had it held the same theory which the 
supreme court has held ? In considering this question it 
will be convenient to notice: (1) the powers given by Con¬ 
gress to its agents, the local territorial governments; (2) the 
direct administrative legislation of Congress. 

The first territorial government was created by the north¬ 
west ordinance of 1787. 1 It contained a compact securing 

1 Poore, “Charters and Constitutions,” 429. 

[413] 


70 


Annals of the American Academy. 


for the northwest territory personal and property rights 
nearly coextensive with those secured later in the present 
constitution. It also contained a clause forbidding the terri¬ 
torial government to do anything inconsistent with the arti¬ 
cles of confederation or any subsequent alteration of them 
constitutionally made. It was clearly intended, therefore, 
that the articles of confederation should operate in the north¬ 
west territory so far as the local government was concerned. 
Now one of the early acts of the first Congress under the 
new government, in 1789, was an act adapting the north¬ 
west ordinance to the new constitution. Such alterations 
as were thought necessary or desirable to put the ordinance 
in the same relation to the constitution that it had sustained 
to the articles of confederation, were made. The provision 
just noticed was left unchanged, and it seems reasonable to 
assume that it was the intention to subject the territorial 
government to the constitution in precisely the same way it 
had been subjected to the articles of confederation. In view 
of this provision and the articles of compact, therefore, it 
cannot be said that the government established by the north¬ 
west ordinance denied at least any important right guaran¬ 
teed by the constitution against the federal government. 
With slight modifications the ordinance was re-enacted for 
the territories of Indiana, 1 Illinois 2 , and Michigan; 3 with 
the exception of the slavery clause, for the original south¬ 
west territory; 4 for Mississippi 5 and Alabama; 6 and although 
an entirely new act was passed for the territory of Wisconsin 
in 1836, 7 it also contained a clause giving to the inhabitants 
all of the rights enumerated in the northwest ordinance, and 
extending the laws of the United States to the territory so 
far as applicable. 

1 Poore, “ Charters and Constitutions,” 1453. 

2 Ibid., 435. 

8 Annals of Congress, 1804-05, p. 1659. 

* Ibid., 1789-91, p. 2226. 

6 Ibid., Fifth Congress, iii, p. 3719. 

® Ibid., Fourteenth Congress, Second Session, 1310. 

1 Poore, “ Charters and Constitutions,'’ 2021. 

[414] 


Government of Dependent Territory. 


7 i 


The first act providing in any way for a government of 
the Louisiana territory was passed October 30, 1803. 1 It 
was not entitled an act for the government of Louisiana, but 
an act authorizing the President to take possession of Louis- 
iana. It was merely temporary in its nature, and designed 
for the purpose of preserving order until Congress could 
provide a permanent civil government. It gave absolute 
freedom of action to the President, and authorized him to 
use the entire military power of the United States to main¬ 
tain order. An essentially similar act was passed for 
Florida, March 3, 1821. 2 These acts have been referred to 
as evidencing a congressional policy of the extremest abso¬ 
lutism in the territories. But, strictly speaking, they should 
not be considered as a part of the congressional administra¬ 
tion of the territories at all; they are in reality acts by which 
military government was established in ceded territory. At 
present the President might establish such temporary gov¬ 
ernmental authority with or without the authorization of Con¬ 
gress; but that means that the military powers of the President 
in our constitutional system were then much less clearly 
worked out than they have since become. For these reasons, 
therefore, it is believed that a review of the civil administra¬ 
tion of the territories by Congress may justifiably omit these 
two acts from consideration; they represent the means then 
used to establish military government in ceded territory. 

Civil government was first established in Louisiana in 
1804. 3 The new acquisition was divided into the territory 
of Orleans and the district of Louisiana, the former compris¬ 
ing practically the present State of Louisiana, and the latter 
everything else. The government established in both 
regions was undemocratic, but neither was permitted to pass 
any law inconsistent with the constitution of the United 
States. The next year a new governmental act was passed 


l Annals of Congress, Eighth Congress, First Session, 1245 
* Ibid., Sixteenth Congress, Second Session, 1809. 

» Ibid., Eighth Congress, First Session, 1293. 


[415] 


72 Annaes of the American Academy. 

for the territory of Orleans, 1 and one which erected the dis¬ 
trict of Louisiana into the territory of Louisiana; 2 in both of 
them the same prohibition was placed upon the power of the 
local government. In 1812 the territory 6f Louisana became 
the territory of Missouri under a new act, 3 which, besides 
the same prohibition, contained a rather elaborate enumer¬ 
ation of rights secured to the inhabitants. This territory, 
like the original northwest territory, was gradually divided 
into a number of territories as the vast region became more 
thickly settled; and in all of the subsequent territorial acts 
within the original Louisiana territory, the same clause was 
introduced forbidding any law inconsistent with the constitu¬ 
tion of the United States. Civil government was first 
established in Florida in March, 1822. 4 It was based upon 
the Orleans act of 1804, but also contained an enumeration 
of civil rights similar to that in the Missouri act of 1812. 
It also contained the provision that all legislation must be 
consistent with the constitution of the United States. The 
Oregon act of 1848, 5 and the act for the territory of New 
Mexico of 1850, 6 contained similar provisions, as did the 
later acts by which the original Oregon and New Mexican 
territories were divided. California never had, strictly speak¬ 
ing, a territorial existence; and Alaska, organized under 
the act of 1884, does not possess a local legislature. 7 

From the above review of the powers of the local govern¬ 
ments in the territories, it is clear that Congress has in every 
case limited these governments by all of the provisions of 
the constitution; the agents of Congress in the territories 
have not been permitted to disregard any constitutional limi¬ 
tation. Outside of the local governments, however, Congress 
has the right, which it has constantly exercised, of legisla- 

1 Annals of Congress, Second Session, 1674. 

^ Ibid., 1684. 

3 Ibid., Twelfth Congress, 2310. 

* Ibid., Seventeenth Congress, First Session, 2578. 

* Poore, “ Charters and Constitutions,” 1491. 

* Statutes at Targe, ix, 446. 

7 Ibid., xv, 240. 

[416] 


Government oe Dependent Territory. 73 

ting directly for the territories; and this direct legislation 
has no necessary connection with, and in case of conflict 
always supersedes, the territorial acts or constitutions. It 
is now necessary to consider some aspects of this direct 
administrative legislation. 

For the purposes of the present paper, only those subjects 
of legislation are pertinent which refer to the positive pro¬ 
hibitions in the constitution upon the power of Congress. 
These subjects may all be grouped under two general heads: 
(1) personal liberties ; (2) property rights. Has Congress 
denied these rights to the territories, as a matter of fact, 
notwithstanding it has held the theory that it might legally 
do so ? Those constitutional provisions which I have grouped 
under personal liberties are of such a nature that legislation 
wdth respect to them has necessarily been left for the most 
part to the local legislatures ; direct legislation by Congress 
has been very rare. Questions of general search warrant, 
excessive bail, fines, and punishments, unreasonable delay 
in trial, the form of indictment and trial, freedom of speech 
and of assembly, have never arisen in the territories in such a 
way as to call for direct legislation by Congress; nor, it is be¬ 
lieved, has any bill of attainder or ex post facto law been passed 
by Congress for the territories, nor the privilege of the writ 
of habeas corpus suspended there within the meaning of the 
constitution as interpreted by the courts. Only one of the 
personal liberties has been the subject of direct legislation by 
Congress—that relating to religious freedom. Polygamy 
is claimed to be an integral part of the Mormon religion, 
but Congress has passed several laws making polygamy a 
crime in the territories, and visiting with severe penalties 
those found guilty of practicing it. But the court, while 
it stated that Congress might not violate the first amend¬ 
ment in the territories, held that marriage was a civil rela¬ 
tion and not an attribute of religion in the meaning of the 
constitution, and that, consequently, the power of Congress 
over polygamy was coextensive with its power to define and 

[417] 


74 Annaes of the American Academy. 

punish crime. The definition of crime, like that of property, 
is, outside of the states, determined by Congress, and the 
constitutional limitations referring to religion and to crime 
do not, therefore, in any way abridge the power of Congress 
to make polygamy a crime in the territories, and punish it 
accordingly. It is not believed that Congress has by any 
direct legislation denied to the inhabitants of the territories 
any of the personal liberties guaranteed in the constitution. 

The property rights guaranteed in the constitution lend 
themselves more readily to direct congressional legislation than 
do the personal liberties. What is property ? Property, in our 
political system, is determined by the common law, modified 
by legislation : within the states the modification can be 
made only by the state legislatures; outside of the states, 
only by Congress. Property in the territories, therefore, is 
anything (with one exception) which Congress makes 
property. The constitutional limitations upon Congress 
with respect to property are, that no one may be deprived 
of property without due process of law, nor shall private 
property be taken for public purposes without just com¬ 
pensation, nor duties, imposts and excises be levied, except 
they be uniform throughout the United States. Has Con¬ 
gress violated any of these provisions in the territories ? The 
only important direct legislation by Congress, touching the 
subject, has been with reference to the revenue and slavery. 

Until 1854 Congress pursued a consistent policy with ref¬ 
erence to slavery in the territories. It always permitted it 
in the southern, and prohibited it in the northern territories; 
east of the Mississippi the line of division was the Ohio 
River, west of the Mississippi, the arbitrary line of 36° 30'. 
If slaves were property, the right of individuals in the terri¬ 
tories in such property was abridged without due process of 
law. But the acts of Congress prohibiting slavery in the 
northern territories, may be interpreted as acts by which 
Congress defined property there anew, in so far as to exclude 
human beings: they may be considered as acts about a cer- 


Government of Dependent Territory. 


75 


tain kind of property, or as acts which removed certain 
things from the category of property entirely. Practically 
they had the latter effect, and, looked at in this light, the 
constitutional limitations with respect to property rights can 
have no reference to this legislation at all. 

As already indicated the all but uniform policy of Con¬ 
gress has been to make the revenue laws uniform for states 
and territories. The first tariff and internal revenue duties 
levied under the present constitution, were not levied or col¬ 
lected in the northwest and southwest territories until 1794. 
The reason was probably the practical one, that the revenue 
which might have been collected there, would scarcely more 
than have paid the cost of its collection. But by the act of June 
5, 1794, 1 the President was authorized to provide for the 
collection of the internal revenue duties in the territories, by 
the erection of districts and the appointment of collectors. 
This was done; and one year later the attorney-general held 
that the act had the effect of extending all of the revenue 
laws, present and future, so far as applicable, to the terri¬ 
tories. Technically, he said, all revenue laws had extended 
there from the first, but until collectors were appointed they 
could not be enforced there; officers once appointed, they 
became the legitimate agents for the collection of duties 
arising under all future acts of a general nature. 2 These 
suggestions were followed by the treasury department from 
that date. In like manner, on February 24, 1804, Congress, 
by a special act, extended the revenue law T s of the United 
States, present and future, to the territory ceded by France, 
and prohibited any discrimination between the territory and 
other parts of the United States. 3 The revenue laws of the 
United States were similarly extended to Florida even before 
a civil government was established there. 4 The same policy 


1 Annals of Congress, I 793 ~ 95 ) P- * 457 - 

» Bradford’s reply to St. Clair, June 19, 1795. St. Clair Papers, ii, 377. 
» Annals of Congress, Eighth Congress, First Session, 1253. 

« Ibid., Sixteenth Congress, Second Session, p. 1809. 


[419] 


76 Annaes of the American Academy. 

was pursued with reference to Oregon 1 (which, as organized 
under the act of 1848, included all of the territory west of 
the Louisiana purchase and north of the Mexican acquisi¬ 
tion), with reference to California, 2 and also with reference 
to New Mexico which originally embraced what remained 
of the Mexican acquisition. 3 It is thus seen to have been 
the almost uniform policy of Congress to subject the terri¬ 
tories to precisely the same imposts, duties, and excises, as 
the other parts of the United States. The only exception 
occurred in the earliest years of the republic; and it is well 
to note that in this one case the lack of uniformity had the 
effect, so far as it had any effect at all, not of denying any 
right to the inhabitants of the territories, but of granting 
them a privilege. In no case it is believed has any one of 
the territories been taxed at a different rate than the rest of 
the Union. 

In summing up the subject it may be said concisely: (1) 
Congress may acquire territory by treaty or conquest, and 
has so acquired it in every instance save that of Texas and 
Hawaii; (2) Congress has all legislative power in the terri¬ 
tories which is not specifically denied to it by the constitu¬ 
tion, and, though always assuming that it was not limited 
by the constitution in any respect in the territories, has not, 
as a matter of practice, directly or indirectly overstepped 
those limitations. 

Care Becker. 

State College, Pa., June, 1900. 

1 Poore, “ Charters and Constitutions,” 1489, 1491. 

* Statutes at Earge, ix, 400. 

* Ibid., ix, 446. 


CORPORATIONS 
AND PUBLIC WELFARE 


Addresses and Discussions at the Fourth Annual Meeting 
of the American Academy of Political and 
Social Science, April 19, 20, 1900 


Pages, 208. Price, $1.00; cloth, $1.50 


ADDRESSES BY 

PROFESSOR L. S. Rowe, University of Pennsylvania 
HONORABLB Bird S. COLER, Comptroller of New York City 
Professor John H. Gray, Northwestern University 
Dr. Frederic W. Speirs, Philadelphia 

Honorable William Lindsay, United States Senator from Kentucky 

James B. Dill, Esq., New York City 

Honorable John Wanamaker, Philadelphia 

William H. Baldwin, Jr., President of the Long Island Railroad 

Honorablb Nelson W. Aldrich, United States Senator from Rhode Island 

Honorable Robert P. Porter, Special Commissioner for the United States to Cuba and Porto Rico 

Charles R. Miller, Esq., Editor-in-chief of the New York Times 


TITLES OF SECTIONS 

The Control of Public-Service Corporations 
The Influence of Corporations on Political Life 
Combination of Capital as a Factor in Industrial Progress 
The Future of Protection 


AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 

STATION B. PHILADELPHIA 





THE ACADEMY AND ITS WORK. 

The American Academy oe Political and Social Science was fanned 
in Philadelphia, Decembers 1889, far the purpose of promoting the political 
and social sciences, and was incorporated February 14, 1891. 

While it does not exclude any portion of the field indicated in its title, yet 
its chief object is the development of those aspects of the political and social 
sciences which are either entirely omitted from the programs of other societies, 
or which do not at present receive the attention they deserve. Among such 
objects may be mentioned: Sociology, Comparative Constitutional and Admin¬ 
istrative Law, Philosophy of the State, Municipal Government, and such por¬ 
tions of the field of Politics, including Finance and Banking, as are not 
adequately cultivated by existing organizations. 

In prosecuting the objects of its foundation, the Academy has held meetings 
and engaged extensively in publication. 

MEMBERSHIP. 

“Any person may become a member of the Academy who having been 
proposed by a member shall be approved by the Council.”— Constitution , 
Article IV. 

Persons interested in the study of political, social and economic questions, 
or in the encouragement of scientific research along these lines, are eligible 
to membership and will be nominated upon application to the Membership 
Committee of the Council, American Academy, Station B, Philadelphia. 

There is no Initiation Fee. Annual Dues, $5. Life Membership Fee, $100. 

MEETINGS. 

Public meetings have been held from time to time at which the members of 
the Academy and others interested might listen to papers and addresses 
touching upon the political and social questions of the day. The meetings 
have been addressed by leading men in academic and practical life, a wide range 
of topics has been discussed, and the papers have generally been subsequently 
published by the Academy. 

The first scientific session of the Academy was held on March 14, 1890; 
three other sessions were held in 1890; seven in 1891; five in 1892; five in 1893; 
six in 1894; four in 1895; six in 1896; eight in 1897; eight in 1898, and seven in 
1899, or sixty in all. 

PUBLICATIONS. 

Since the foundation of the Academy, a series of Publications has been 
maintained, known as the Annals of the American Academy of Political and 
Social Science and the Supplements thereto. These publications have brought 
home to members accurate information and carefully considered discussions of 
all the questions embraced within the field of the Academy’s interests. The 
Annals is sent to all members of the Academy. 

ANNALS. 

# - The Annals was first issued as a quarterly, but since the second volume 
it has appeared as a bi-monthly. At the present time, the Annals comprises 
two volumes of about 500 pages each per annum. The sixteen volumes thus 
far issued comprise 61 numbers, constituting with the supplements 11,027 pages 
of printed matter which have been distributed to the members of the Academy. 

Besides the larger papers contributed by many eminent scholars both at 
home and abroad, especial attention has been directed to the departments. All 
important books are carefully reviewed or noticed by specialists. The depart¬ 
ment of Personal Notes keeps the reader informed of movements in the academic 
and scientific world. Notes upon Municipal Government and Sociology preserve 
a careful record of events and other matters of interest in these subjects, 
which at the present time claim so large a share of public attention. 


To persons not members of the Academy, the price of Vols. I.-V., 
including supplements, is #6.00 a volume, and of Vols. VI.-XVI., $3.00 each. 
Separate numbers $1.00 each. Special rates to Libraries : Vols. I.-V., $ 5.00 
each; Vols. VI.-XVI., $2.50 each. 

Members are entitled to discounts varying from 167^ per cent to 20 per 
cent on orders for back numbers or duplicate copies of publications. All cur¬ 
rent publications are sent to members free of charge. 



SUPPLEMENTS. 


The supplements which have been sent to members with the Annals comprise the 
following : 

“ Public Health and Municipal Government." By John S. Sittings. Pp. 23. 

“ History , Theory and Technique of Statistics." By August Meitzen, 
translated by Rotand P. Fatkner. Pp. 243. 

The translation of this excellent treatise was the first general treatment of statistics 
which appeared in the English language. It remains to-day the only work which gives a 
comprehensive view of the method of statistical research. 

“ Constitution of the United States of Colombia." Translated by Bernard 
Moses. Pp. 70. 

“ Constitutional and Organic Lazos of France." Translated by C. F. A. 
Currier. Tp. 78. 

“ Constitution of the Kingdom of Prussia." Translated by James Harvey 
Robinson. Pp. 54. 

“ Constitution of Italy." Translated by L. S. Rowe and S. M. Lindsay. 
Pp. 44. 

“ Constitution of Belgium." Translated byj. M. Vincent. Pp. 40. 

This series of constitutions is a unique feature of the Academy's work. It enables the 
student of political science to draw instructive comparisons between the public law of our 
own laud and of other nations. 

“ History of Political Economy." By Gustav Cohn, translated by J. A. 
Hitt. Pp- 142. 

This monograph places in the English language the view of the development of eco¬ 
nomic thought of a leading German economist. It places within the reach of all students a 
key to the influence of Germany upon recent economic thought and literature, especially in 
the United States. 

“ Inland Waterways." By Emory R. Johnson. Pp. 164. 

A neglected factor in the transportation problem is here discussed with great insight 
and ability. The author's estimate of the function of this agent of transportation is based 
upon a careful study of the history of canals and their services. A chapter on the Nicaragua 
Canal gives an inteiesting account of that project. 

“ Theory of Sociology." By Franktin H. Giddings. Pp. 80. 

In this volume Professor Giddings, who has become widely known bv his recent work, 
“ Principles of Sociology,” treats the following topics: The Sociological Idea ; The Province 
of Sociology : The Problems of Sociology ; Social Growth and Structure ; Social Process, Taw 
and Cause ; The Methods of Sociology. 

“ Theory of Social Forces." By Simon N. Patten. Pp. 151. 

A study of the various steps in social evolution, particularly of some hitherto neglected 
processes in development. The monograph is divided into five parts, which treat respec¬ 
tively of ” The Influence of the Environment,” “Race Psychology,” “Knowledge and 
Belief,” “ A Social Commonwealth ” and “Normal Progress.” 

' Foreign Policy of the United States : Political and Commercial." Pp. 216. 

Addresses and Discussion at the Annual Meetingof the Academy, April 7th and 8th, 1899. 

“ Corporations and Public Welfare." Pp. 208. 

Addresses at the Fourth Annual Meeting of the Academy, April 19th and 20th, 1900. 

“ Selected Official Documents of the South African Republic and Great 
Britain." By Hugh Wittiams and Frederick Chartes Hicks. 
Pp. 72. 

A documentary perspective of the causes of the war in South Africa. 









Political and Social Science 


PHILADELPHIA 


President , 

EDMUND J. JAMES, Ph. D., University of Chicago. 


Vice-Presidents , 






SAMUEL M. LINDSAY, Ph. D., 
University of Pennsylvania. 


F. H. GIDDINGS, PH. D., 
Columbia University. 


WOODROW WILSON, Ph. D., 
Princeton University. 


Secretary , 

L. S. ROWE, Ph. D., 
University of Pennsylvania. 

Treasurer , 
STUART WOOD, 
400 Chestnut Street. 


Counsel , 

IIon. CLINTON ROGERS WOODRUFF, 
Girard Bldg., Philadelphia. 

Librarian , 

JOHN L- STEWART, 

Lehigh University. 


GENERAL ADVISORY COMMITTEE. 


RT. HON. ARTHUR J. BALFOUR, M. P., 
London, England. 

PROF. C. F. BASTABLE, 

Dublin University. 

PROF. F. W. BLACKMAR, 

University of Kansas. 

SIR JOHN BOURINOT, K.C.M.G., D.C.L., 
Ottawa. Canada. 

PROF. R. T. ELY, 

Wisconsin University. 

PROF. HENRY W. FARNAM, 

Yale University. 

PROF. W. W. FOLWELL, 

University of Minnesota. 

HON. LYMAN J. GAGE, 

Washington. D. C. 

DR. KARL T. von INAMA-STERNEGG, 
Vienna, Austria. 

PROF. JOHN K. INGRAM, LL-D. 

Trinity College, Dublin. 


PROF. J. W. TENKS, 

Cornell University. 

PROF E LEVASSEUR, 

Paris, France. 

PROF. AUGUST MF.ITZEN, 
University of Berlin. 

PROF. BERNARD MOSP:S, 

University of California. 

PROF. HENRY WADE ROGERS, 
Yale University. 

PROF. HENRY SIDGWICK, 
Cambridge University. 

PROF. WILLIAM SMART LL.D., 
University of Glasgow. 

SIMON STERNE. Esq., 

New York City. 

HON. HANNIS TAYLOR, LL. D., 
Mobile, Ala. 

PROF. LESTER F WARD, 
Washington, D. C. 





















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